June 7, 2005

Chairs and speech

Kudos to David French of FIRE (Foundation for Individual Rights in Education) for acknowledging today the gray areas involved in the speech of department chairs, who act both as faculty and as administrators. The immediate occasion is the controversy over Timothy Shortell, recently elected as chair of Brooklyn College's sociology department. As the New York Daily News and New York Sun reported, Shortell had published an article in which he called religious adherents "moral retards," sparking outrage on campus and in the New York metro area. Brooklyn College historian KC Johnson explained his concerns about Shortell as chair (pretty much calling for his removal) and compared the possible removal of Shortell with the pressure on Ward Churchill to resign from his position as head of his department earlier this year and the removal of Leonard Jeffries from his position as a CUNY chair for anti-Semitic comments.

Jeffries sued on his removal as chair (he wasn't fired from his faculty position), and after various legal maneuvers, Jeffries' initial victory, and a Supreme Court decision in another public-employee speech case, the U.S. Second Circuit Court ruled that the CUNY chancellor and trustees did not need to prove actual harm from his speech to remove him from his administrative post. The crucial part of the decision for academic freedom is the distinction between a chair's role and a professor's. The court noted, "Jeffries is still a tenured professor at CUNY, and the defendants have not sought to silence him, or otherwise limit his access to the "marketplace of ideas" in the classroom." Therein lies the arguments about the authority of universities to remove chairs (see Eugene Volokh's comments on this vis-a-vis Ward Churchill).

Last Friday (June 3), French argued from this perspective that Shortell's views created a liability problem for Brooklyn College in case he ever was involved in a tenure or promotion denial for a colleague with professed religious views. Since then, a FIRE supporter e-mailed French, arguing that one could on that basis bar virtually anyone with strong views about the nature of religion from any administrative post, whether the person was atheist, Catholic, evangelical, Muslim, etc. David French responded with the following arguments (I am paraphrasing):

Shortell's essay was more than an abstract discussion of theology; instead, it constituted specific ad hominem denigration of a class of individuals on the basis of religion.

Shortell's position as a hiring authority (and someone equivalent to a law firm's hiring partner or someone in an HR department with hiring authority) put the university at substantial risk, given the current state of employment law.

I don't think this is a substantive answer to the concerns, as it restates the argument, perhaps with the variant that Shortell's writings are more severe and prejudicial than the views of most faculty on faith. Nonetheless, French gets credit for responding to his correspondent.

Part of the difficulty here is that there is a difference between the legal situation (where administrators and governing boards can remove department chairs) and the practical life of universities. French suggests that universities take much greater care in screening potential administrators, especially for this type of embarrassing flaw. Would that universities had such luxury! For some positions, there is an underwhelming dearth of applicants (or even nominally qualified applicants).

But let's assume that we can identify employment-law-foolhardy faculty and ban them from administrative posts. The fact is that faculty still have enormous power to wreak havoc in personnel matters, from screwing up searches to playing politics with tenure decisions. The reason why the Supreme Court stripped union organizing rights from private-university faculty in the Yeshiva case is because they share management authority in many matters, from curriculum to personnel. Ask any administrator supervising searches what the greatest fears are these days, and one of the top ones will be a faculty member who screws it up by not following written procedures, by asking a legally impermissible one in an interview (e.g., about the marital status of a candidate), or by something worse.

I don't think administrators have the authority to bar faculty from all personnel authority, including the shared power involved in searches and tenure/promotion decisions, for their written comments. In the real life of campuses, administrators fear all sorts of actions but live with the risk, in the same way that real corporations live with the same risk involving managers.

In reality, the removal of departmental chairs based on their speech is a cover-your-rear maneuver to stem public embarrassment. The personnel-hiring argument of Johnson and French is a fig-leaf cover for that reality. There is no comfortable resolution of this: Jeffries, Churchill, and Shortell are not the brightest stars in academe's firmament. But the removal of department chairs based on public embarrassment is dangerously close to allowing a heckler's veto on campus, and telling faculty that they shouldn't be worried because administrative posts are not the same as faculty posts is cold comfort when a campus has been under siege.

ADDENDUM 1 (8:45 pm): On second thought, I'm not so sure that the relevance of the Jeffries decision revolves around the distinction between chairs and faculty. The heart of that short decision was the question of whether harm to an agency needed to be actual or plausible for a public employee to be fired based on speech. The Second Circuit Court tossed off the line about distinguishing administrative posts from faculty positions, but that was not at issue in the case (as Jeffries was not fired), and so it not relevant to that case, and I am doubtful whether it would be precedential in another case.

ADDENDUM 2 (10:45 pm): The obvious parallel I missed was with Larry Summers's controversy (du jour). Stanley Fish has opined that Summers's remarks about women and science violated the job requirements of being a Harvard president, with the snide aside, Whenever the phrase "academic freedom" is invoked, you know you're hearing cant. In essence, French and Fish here are on the same side (which has got to be a first), arguing that one can lose an administrative job from one's speech.